Shimla, through its Chief Executive Officer-cum-Secretary.
…Opposite Party
O R D E R:
Sureshwar Thakur (District Judge) President:- This complaint Under Section 12 of the Consumer Protection Act, 1986, has been filed by the complainant, Smt. Sheela Devi, against the OP-HIMUDA. The complainant, avers that she pursuant to the advertisement issued by the OP, applied for allotment of flats under the self financing scheme and the OP, vide communication dated 28.06.89, intimated that flat No.2, Block A-1, Kasumpti Zonal Center, Shimla-9, has been allotted in her favour. It is averred that total consideration amount for the flat was to the tune of Rs.32,000/-, out of which, a sum of Rs.11,500/- was the earnest money and the balance amount of Rs.20,500/- was to be deposited in 168 monthly instalments at the rate of Rs.228/- per month. Thereafter, a hire purchase tenancy agreement was executed interse the parties on 31.07.89, and complainant made regular payment of monthly instalments, as such, on 23.10.2003, a lease deed was executed when the complainant made entire payment of Rs.32,000/-.

The complainant further proceeded to aver that hardly a period of five years had elapsed from the date of allotment of the flat, it transpired that the OP had not adhered to the standards of construction as represented to the prospective buyers at the time of registration for allotment. The plaster on the walls started giving away and the floor of the flat developed cracks, resultantly, she, in the year 2000 had to carry out major repairs in the flat expending a sum of more-than Rs.25,000/- and thereafter hardly a period of further three years had passed, when the block in which the flat allotted to her is situated, started developing cracks which widened day by day. It is averred that the said fact was brought to the notice of the OP, in January, 2004, with a request to take immediate remedial steps, but they instead of doing the needful, slept over the matter and nothing was done.

However, the OP vide letter dated 03.05.2005, intimated her that the Block No.A-1 is tilting and there is possibility that the Block may collapse during the ensuing rainy season or on account of any earthquake of natural calamity and further that the Block appears to be unsafe for permanent human habitation and she was advised to make alternative arrangements and that the OP would not be responsible for any consequences in view of the critical position of the Block. Hence, it is averred, that, there is apparent deficiency in service on the part of the OP, and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-HIMUDA filed reply to the complaint and raised preliminary objections vis-à-vis, maintainability of the complaint, and there being no deficiency in service. On merits, it is denied that the OP had not adhered to the standards of construction as represented to the prospective buyers and that the complainant in the year 2000 had to carry out major repair in the flat by expanding a sum of Rs.25,000/-.

It is contended that since the possession of the flat was given to the complainant in the year 1989, therefore the repairs and maintenance of the flat was required to be done by the allottees herself. It is contended that after inspecting the flat by the expert and the fact that the block is titling and is unsafe for human habitation, notices were served on 06.07.2005 to the complainant and other allottees residing in the Block as a precautionary measure. It is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter the parties led evidence by way of affidavits and documents in support of their respective rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The OPs does not deny the fact that the complainant has purchased premises as detailed in the complaint, under, a hire purchase agreement executed by the complainant with the OP. Hence, the complainant is a consumer under the OP. The complainant received a letter from the OP bearing Annexure A-4, requesting her that, for, the reasons detailed in it, there, is, likelihood, of, the premises purchased by her from the OP under hire purchase agreement, collapsing, hence, it being rendered unfit for human habitation, she, make alternative arrangements for her stay.

The complainant is aggrieved by Annexure A-4. The OP has attributed the defect in her premises while being part of the building purchased by the complainant from the OP, to, its, tilting, which has been further attributed, to, poor maintenance of drainage and sewerage system leading to percolation of rain water/sewerage discharge into the foundation of the building. With the above attribution, by, the, OP, the OP, has proceeded, to, contend that when the allottee of the premises had failed to maintain the drainage and sewerage system in a manner, to, preclude rain water/sewerage discharge percolating into the foundation of the building, hence, the building has titled squarely, as a result of omissions on the part of the complainant. Obviously, they have sought to negate, any, attributions of omissions or lapses on their part, in not having constructed the building in a manner to obviate its tilting.

If the tilting has been occasioned by non-maintenance of drainage and sewerage system leading to percolation of rain water/sewerage discharge into the foundation of the building, in, which the premises of the complainant is situated, then, the OP while contending, so, was, obliged, to, bring forth satisfactory and cogent evidence, to, demonstrate, that, the construction of drainage and sewerage line from which purportedly their was seepage of water into the foundation of the building leading to its tilting, was, of the highest standard and there was no defective or sub-standard material used either in the construction of the drainage system or in the construction of the sewerage system. However, the OP, has not brought forth such evidence, hence, it is held that primarily, if, their, has been percolation of rain water and sewerage discharge, into, the, foundation of the building, leading to its tilting, such percolation is attributable to defective construction, of, both the sewerage, as well, as, the drainage system.

6. Assuming, that, the defective construction material used by the OP, in, the construction of drainage and sewerage system leading, to, seepage of water into foundation of the building, led to its tilting, yet, the fact that the foundation of the building, for, reasons aforesaid, has, come to giveaway is, also, amplificatory of the fact that the foundation, of, the building itself was not constructed in a manner, so as, to, withstand the effect of percolation of the water from the drains and discharge from the sewerage line. Hence, if, it, could not withstand the percolations, also, it has to be concluded that the very foundation of the building was comprised of defective constructional material or that the OP had not taken to proceed to raise the foundation on hard strata which, omissions or lapses on their part, in our view, also is to be construed to be a reason for the foundation of the building to have so easily given away, even when, it, has not been proved that there, was, such excessive percolation of drain water and discharge of sewerage line into the foundation of the building, that, even the most, perfectly built foundation, in, consonance with the highest standards of engineering skill as well, as, constructional material could not withstand. Therefore, the tilt in the foundation of the building is to be construed to be attributable to defective construction material, used in it, which, constitute a deficiency in service.

7. The OP, also, proceeded to seek recourse to the provisions of 7(5) of clause 23, of Himachal Pradesh Apartment Act, 1978, which absolve, the, owner from any liability of any damages or destruction of the properly as a consequence of any accident of any nature. The said Regulation, also, ordains that, it, shall be the duty of the hire to carry out the repairs to bring it to its original position. As such, it is contended by the OP that the aforesaid provision exculpate the liability of the OP, for, the building in which the premises, is, located having tilted.

The recourse to the said provision, is, misplaced, as, it would have come to the rescue of the lessor, only in the eventuality of the natural calamity, having occurred resulting, in, the destruction of the property. In our view, it, does not come to the rescue of the OP, when omissions as well as lapses, inasmuch, as, their having taken to use sub-standard and defective construction material, in, the construction of the drainage as well, as, sewerage system has, admittedly, resulted in the percolation of water sewerage discharge into the foundation of the building causing, it, to tilt, hence, rendering the premises of the complainant comprised in the building to be unfit for habitation.

Such acts or lapses of the OP having ultimately rendered the premises unfit for habitation, cannot, also, be construed to be natural calamities. The tilting of the building, as reasoned above, hence, having come to surface, solely on account of various omissions and lapses on the part of the OP, they are squarely liable, for, the building in which the premises of the complainant are situated, to, have been rendered unsafe for habitation.

8. Further more, the complainant has also been able to prove by the existence of Annexures A-4/A & A-5 of the premises during the period of her stay their having developed defects, for repairing of which defects, she expended the amounts of money as detailed in Annexure A-4/A. The expenses as detailed in Annexure A-4/A are not additions or alterations, they, were necessitated for correcting or repairing, the, constructional defects, attributable to the OP. Therefore, the amount, as detailed in it, are, liable to be reimbursed by the OP. While adjudging the relief affordable to the complainant, for the constructional defect as detailed above having resulted in the premises in which the complainant was residing, to be, rendered unfit for habitation, for which defect it, has also been held by us that the OP is squarely liable.

We, deem, it fit, that the OP shall while bearing in mind costing of the premises as allotted to the complainant, allot an alternative accommodation, in case, such alternative accommodation is not available, then, bearing in mind of the relevant factors including costing of the premises as allotted to the complainant in which constructional defects erupted, shall pay, to, the complainant, the cost of the flat along with interest at the rate of 9% per annum from the date of issuance of letter by the OP, i.e. 6th May, 2005 Annexure A-4.

9. As a sequel of the above, the complaint is allowed in the following manners:-

i) The OP is directed to reimburse an amount of Rs.25,000/- to the complainant along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 18.08.2003, till actual payment is made;

ii) The OP is further directed to allot alternative accommodation of the same size, as, was earlier allotted. In case, the OP, is, not in a position to allot an alternative accommodation, in that eventuality, the OP shall refund the cost of the flat, to the complainant, along with interest at the rate of 9% per annum from 6th May, 2005;

iii) The litigation cost is quantified at Rs.3,000/- payable by the OP, to the complainant;

iv) The OP shall comply with this order within a period of forty five days after the date of receipt of copy of this order;

For the Respondent: None for the respondent though duly served as per office report.

O R D E R

Justice Arun Kumar Goel ( Retd.), President (Oral).

1. This appeal is directed against the order, dated 12.6.2008 passed by District Forum, Hamirpur, in Consumer Complaint No.14/2001/2007. While allowing the complaint, District Forum has ordered as under:-

“9. Accordingly, we pass the following order.

The opposite parties are ordered and directed severally and jointly to refund the amount of maintenance charges deposited by the members of the complainant Association within a period of 30 days from the receipt of certified copy of this order, failing which the complainant shall also be entitled to interest at the rate of 9% per annum on the amount deposited by it on account of maintenance charges from the date of filing the complaint i.e. 08.12.2000 till realization. The complainant shall also be entitled to cost of complaint, which we assess at Rs.2,000/-. The complaint stands allowed. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room”.

2. Mr. Serkek, learned Counsel for the appellants submitted that the appeal was bad for non joinder of parties inasmuch as that in the complaint Chief Executive Officer cum Secretary of the H.P. Housing Board, Shimla, Executive Engineer of H.P. Housing Board, Mandi and Assistant Engineer of the said Board have been added as party, whereas HIMUDA was not added as a party nor of its functionaries were arrayed as such. Thus, this appeal was bad for non joinder of parties.

3. In this behalf it could not be disputed by learned Counsel that HIMUDA has been constituted under a State Act and all assets and liabilities of Himachal Pradesh State Housing Board have vested in it. No doubt HIMUDA should have been added as a party, fact remains that when the complaint was filed in the year 2001, admittedly it was H.P. Housing Board that was the agency concerned with the colony in question at that point of time. That being the position, the objection raised on behalf of the appellants for non joinder of HIMUDA-appellant No.1 as well as its functionaries as parties appears to be a purely technical objection. Moreover, appeal has been filed by HIMUDA. In case order did not hurt the appellants, there was no occasion for appeal having been filed by it and its functionaries. Faced with this situation, Mr. Serkek tried to catch the last straw in this behalf when he urged that even H.P. Housing Board has not been added as a party. If we accept this submission, then we shall have to dismiss the appeal, because the appeal is filed by HIMUDA, his client. As such, the plea regarding non joinder is hereby rejected.

4. Next submission forcefully urged on behalf of the appellants was that maintenance was being regularly undertaken by the appellants of the colony in question and grievance to the contrary made by the respondents was wholly misconceived. District Forum below fell into error by ignoring this vital fact. In this behalf submission of the learned Counsel is wholly misconceived. We drew the attention of the learned Counsel to Annexure C/A, dated 15.2.2000, copy whereof is at page 43 of the complaint file. Amongst other things, it is mentioned in it that there are no funds against maintenance of colony alongwith development, until unless there is no funds available, it is very difficult to start the maintenance of the colony under various heads as mentioned in the said letter. Learned Counsel submitted that this does not in any manner improve the case of the respondents. We cannot lose sight of the fact that for maintenance funds are required. Issuance of this letter is not in dispute though learned Counsel submitted that even if what is stated in this letter is correct, even then fact remains, that at best direction should have been issued to maintain the colony. This submission is being noted to be rejected.

5. No other point was urged.

In view of the aforesaid discussion, we find no merit in this appeal which is accordingly dismissed, leaving the parties to bear their own cots.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned Counsel for the appellants has undertaken to collect copy of this order free of cost from the Court Secretary at Shimla and office is directed to send the same in the like manner to respondent-Association at the address as given in the Memo. of parties.

1. When hearing in this appeal commenced, Mr. Munish Serkek, learned Counsel for the appellant raised following grounds to challenge the impugned order dated 20.3.2007 passed by District Forum, Hamirpur, Camp at Nadaun in Consumer Complaint No.39/2005:-

(a) Because of civil litigation initiated by third parties, construction work could not be undertaken in terms of Annexure C.12;

(b) Possession was given to the respondent on 2.8.2002, whereas complaint was filed on 9.3.2005, as such it was barred by time and no prayer was made for condonation of delay nor any application was filed to that effect; and

(c) As allotment was made on “as is where is basis”, so the respondent could not make any grievance because he was aware that he has to accept whatever is being offered to him by the appellant.

On all these grounds, he prayed for allowing this appeal while setting aside the impugned order and consequently dismissing the complaint.

2. District Forum below while allowing the complaint, has ordered as under:-

“7. On these facts of the case, we are of the considered opinion that the complainant is not liable to pay the penal interest, as the opposite party failed to remove the defects before handing over the possession to the complainant and the complainant is also entitled to the amount so incurred by him for removing the defects. Hence we pass the following order.

In the light of our above discussion and findings, we order and direct the opposite party to make payment of Rs.70,766/- to the complainant alongwith interest at the rate of 9 per cent per annum from the date of complaint i.e. 9.3.2005 till realization of the said amount. The opposite party is further directed not to charge any penal interest from the complainant on delayed payment. The opposite party is also burdened with cost of these proceedings which we assess at Rs.1000/-. Certified copy of this order be sent to the parties free of cost. File after its due completion be consigned to record room.

Announced and signed in the open Forum, this 20th day of March, 2007”.

3. Facts have been noted in detail in the impugned order, as such those are not being repeated. Only such facts which are necessary to deal with the above points will be noted while dealing with each one of those.

4. So far initiation of civil litigation is concerned, copy of the interim order passed by the Civil Court on 19.3.2000 was to the effect that the parties to the suit were directed to maintain status quo qua passage as detailed in the plan. Copy of the plaint is Annexure R.4. This suit was filed in the year 2000. We are at the close of year 2009. What is stage of the suit, learned Counsel for the appellant could only state that it is still pending. Whether any attempt was made to get the stay order vacated and/or any prayer was made to the trial Court for expeditious disposal of the case in the face of the inconvenience being caused to the residents of the Colony as also litigation being thrust on the appellant. Atleast complaint file does not show anything to that effect and nothing could also be pointed out by Mr. Serkek to that effect. In this behalf we are of the view that it was the duty of the appellant to have ensured that atleast it should have highlighted all the facts before the Civil Court and prayed for expeditious disposal of the suit. In case this prayer was declined, then it should have had recourse by approaching the higher Court(s). That being the position, and fate of the suit still being not known, on the ground of pendency of civil litigation, claim of the respondent cannot be denied.

5. Now coming to the next submission that was urged in support of this appeal regarding complaint being time barred and no prayer having been made either for condonation of delay in the complaint or by way of separate application. In this behalf when reference is made to Annexure C.1, dated 2.2.2005, it is evident that the claim of the respondent was considered after he had incurred expense for repair of defects in the sum of Rs.70,766/- as per estimate prepared by an expert i.e. Hamir Architect & Associates vide Annexures C.14 to C.17. Thus, it is evident that the expense incurred was denied to the respondent on 2.2.2005. This shows that the complaint was within time as it was filed on 9.3.2005. Consequently, plea of limitation is also rejected.

6. Now comes the question as to whether the appellant as a high contracting party can be allowed to take benefit of the allotment being made on “as is where is” basis, and therefore respondent was precluded for all times to come to bring the defects as well as other things to the notice of the appellant for enjoyment of the house purchased by him. According to us, no benefit can be derived by the appellant from such a plea. H.P. Housing Board was a creation of a statute, i.e. H.P. Housing Board Act and is wholly a State Government owned and controlled Board whose all assets, rights and liabilities have vested in HIMUDA after coming into force of HIMUDA Act. State Government has pervasive control over the appellant and prior to it on H.P. Housing Board. As such it is expected to act in a fair, just and reasonable manner. It is purely a business organization constituted under the State Act in the discharge of its social functions towards the Society at large. However, it does give a licence to the appellant to offer defective, inhabitable dwelling units/houses to the allottees, like respondent in this case. In fact respondent had no option but to sign on the dotted lines because he is in no win situation if he had to get the allotted house from the appellant. Plea of the appellant that the complaint was not maintainable and District Forum below fell into error while allowing the same, is a plea being noted to be rejected, particularly when the appellant is a high contracting party and the respondent was in no win situation, except for signing on the dotted lines. For taking this view we are supported by a decision of the Hon’ble Supreme Court in Central Inland Water Transport Corporation Ltd. And another Versus Tarun Kanti Sengupta and another, and another connected case, AIR 1986 SUPREME COURT 1571. That being the position, plea urged that because of allotment having been made on ‘as is where is” basis to allow this appeal is hereby rejected.

7. No other point was urged.

In view of the aforesaid discussion, there is no merit in this appeal which is accordingly dismissed while upholding the order of the District Forum below passed in Consumer Complaint No.39/2005, dated 20.3.2007. Respondent is also held entitled to costs of this appeal quantified at Rs.3500/-.